Turner v. Johnson

• Decision Date: 19 March 1888
• Citation: 7 S.W. 570,95 Mo. 431
• Parties: Turner v. Johnson, Appellant. Turner, Appellant, v. Johnson
• Court: Missouri Supreme Court

7 S.W. 570

95 Mo. 431

Turner v. Johnson, Appellant.

Turner, Appellant, v. Johnson

Supreme Court of Missouri

March 19, 1888

Cross-Appeals from Livingston Circuit Court. -- Hon. James L Davis, Judge.

Affirmed.

B. R Vineyard, H. L. Stone and Thomas F. Hargis for Thomas Johnson, appellant and respondent.

(1) The plaintiff's petition is defective in improperly joining different grounds of action in the same count. (2) The plaintiff, in his second amended petition, states that the sale did not take place at the court-house door, or at the door of a building used as such, and was, therefore, void. He further charged that the indebtedness secured by the deed of trust and all he owed the defendant had been paid off. If so, his only remedy was by action at law in ejectment for possession. The court will not exercise its equity powers in a legal action. Maguire v. Tyler, 47 Mo. 128; Holden v. Vaughn, 64 Mo. 588; Sumner v. Rogers, 90 Mo. 324. (3) An action at law and one in equity cannot be properly joined in the same count. And it is error to join in a single count of a petition, as did plaintiff in his second amended petition herein, an action to redeem land with one for the possession thereof. Henderson v. Dickey, 50 Mo. 161. (4) The changes and new matter set up in the second amended petition, as compared with the first amended petition, constituted a departure, and defendant's effort to have them stricken out on his motion filed for that purpose ought to have been sustained. (5) Where the court-house building has been destroyed, the door of the building used for the holding of court, or designated for that purpose, is the place at which trust sales should occur under deeds of trust providing for sales at the court-house door. Kane v. McCown, 55 Mo. 198; Hambright v. Brockman, 59 Mo. 52; Napton v. Hurt, 70 Mo. 497. And the testimony was overwhelming that the sale under consideration occurred at the door of such a building. (6) The Supreme Court of Missouri has decided, in a case much like the one set up in the petition of plaintiff, that no cause of action was stated. Miltenberger v. Morrison, 39 Mo. 71. (7) "A mortgage is not within the rule forbidding trustees or agents from purchasing estates with whose disposition they have been entrusted." Woodlee v. Burch, 43 Mo. 234; Cooley v. Rankin, 11 Mo. 642; McNair v. Biddle, 8 Mo. 257; Blythe v. Richards, 10 S. & R. (Pa.) 261; Harrison v. Roberts, 6 Fla. 714. (8) "The insecurity of titles and the temptation to perjury, among the chief reasons demanding that contracts affecting lands should be made in writing, also imperatively require that trusts arising by operation of law should not be declared upon any doubtful evidence, or even upon a mere preponderance of evidence. There should be no room for a reasonable doubt as to the facts relied upon." Johnson v. Quarles, 46 Mo. 426; Forester v. Scoville, 51 Mo. 268; Ringo v. Richardson, 53 Mo. 395; Worley v. Dryden, 57 Mo. 233; Rogers v. Rogers, 87 Mo. 257. (9) Inadequacy of price, to justify the setting aside of a sale on that ground, should be so gross as to shock the moral sense and outrage the conscience. Holden v. Vaughn, 64 Mo. 588; Meir v. Zelle, 31 Mo. 331; Hammond v. Scott, 12 Mo. 8; Railroad v. Brown, 43 Mo. 297. And this rule applies to sales under powers in deeds of trust as well as to sales under execution. Million v. McRee, 9 Mo.App. 344; Carter v. Abshire, 48 Mo. 303; Kline v. Vogel, 11 Mo.App. 211. (10) Turner, if he ever had any rights, slept on them too long (three years and three months) before attempting to assert them, knowing all the time that defendant was in possession of the lands, claiming and paying taxes thereon, and expending large sums in improving the same. In one case (Reel v. Ewing, 71 Mo. 17), the Supreme Court decided two years was too long to wait. In another (Kline v. Vogel, 90 Mo. 239), a party was held to have lost his rights by waiting nearly three years. See also, Bliss v. Pritchard, 67 Mo. 181, and cases cited therein. Besides his laches, plaintiff is cut out of the right to recover on the principle of equitable estoppel. Evans v. Snyder, 64 Mo. 516; Collins v. Rogers, 63 Mo. 515; Stevenson v. Saline County, 65 Mo. 425; McNew v. Booth, 42 Mo. (11) If a time is fixed for redemption in an agreement, which is made the basis of a trust, the effort to redeem must be made in that time; if no time is agreed on, then it must be made within a reasonable time. Medscar v. Swaney, 45 Mo. 273; Hughes v. Sheaff, 19 Iowa 335; Saxton v. Hitchcock, 47 Barb. (N. Y.) 220; Woodsworth v. Morris, 56 Barb. 97; Jones on Mort. (3 Ed.) secs. 260, 261, 262. But the facts of this record show no contract or agreement mutually binding on the parties, but only a privilege granted by Johnson to Turner after the sale, and not enforceable after three years laches. Price's Heirs v. Evans, 26 Mo. 52, 53. (12) Where one party gives notice to the other party to a contract that he repudiates the agreement and refuses to comply with it, and the party so notified "lies by for one or two years, it will be regarded as an acquiescence in the rescission," and a court of equity will, in a suit brought after that for specific performance, deny to him the right to recover. Banks v. Burnham, 61 Mo. 76. (13) The alleged trust, if it existed, was created by contract and is within the statute of frauds and perjuries. R. S., secs. 2511, 2512, 2513; Parker v. Boyle, 4 Bibb, 102. This case, if a trust, is neither a resulting nor constructive trust, and, therefore, within the statute of frauds and perjuries. Perry on Trusts (3 Ed.) secs. 137, 226. (14) Defendant in this case, under the pleadings and order of reference, can only be held responsible for the rents collected and received. His possession was lawful and rightful, and although he may be adjudged to be a trustee, he can only be held liable for what he received, unless proven guilty of fraud or gross negligence. Hunter v. Hunter, 50 Mo. 452; Ely v. Turpin, 75 Mo. 86; 2 Jones on Mort., sec. 1123; Harper's Appeal, 64 Pa. St. 315; Morris v. Budlong, 78 N.Y. 543; Philips v. Hulsizer, 20 N.J.Eq. 315, 316. A mortgagee in possession under a deed absolute in form and believing himself the actual owner (as defendant undoubtedly did in this case) is never chargeable with more than the net rents received. Robinson v. Hanbury, L. R. 2 H. L. 1; Morris v. Budlong, 78 N.Y. 543; Moore v. Cable, 1 Johns. Ch. 384; Harper's Appeal, 64 Pa. St. 315; Greenwood's Appeal, 92 Pa. St. 181. (15) Where the mortgagee in possession is a non-resident and appoints an agent to manage the lands mortgaged, in the absence of any negligence in appointing the agent, the mortgagee will only be charged with the rent actually received, although a higher rent by due diligence could have been obtained. Gerrish v. Black, 104 Mass. 405; 5 Wait on Act. and Def. 434. (16) The interest on the eleven thousand dollars should have been computed at the rate of ten per cent. per annum till paid. Harper v. Ely, 70 Ill. 501; Mosier v. Norton, 83 Ill.; Starr v. Ellis, 6 Johns. Ch. 395; James v. Johnson, 6 Johns. Ch. 425; Valle v. Fleming, 29 Mo. 152; Honaker v. Strough, 55 Mo. 472. (17) A trustee is required to exercise only common skill, common prudence, and common caution. Hunter v. Hunter, 50 Mo. 445; Taylor v. Hite, 61 Mo. 142. (18) Courts of equity have discretionary power in this state to tax costs to either party. R S. 1845, sec. 6, p. 242; R. S. 1879, secs. 18, 1002; Shields v. Bogliolo, 7 Mo. 134; Walton v. Walton, 17 Mo. 376; Dupont v. McLaren, 61 Mo. 511. Defendant is the "prevailing party" on the accounting branch of the case, and is entitled to his costs. (19) The testimony showed that the services of defendant in taking charge of and managing the lands in controversy, loss of time, and trouble, were reasonably worth at least five thousand dollars.

Ramey & Brown, Woodson, Green & Burnes, D. H. McIntyre and C. C. Turner for Thomas Turner, respondent and appellant.

(1) A parol agreement to buy in land for a debtor whose property is about to be sold, and a purchase by the party who agreed to buy it and furnish the means to pay for it and hold the property as security for the money furnished, any attempt by the purchaser to hold it for himself, is in itself a fraud and courts of equity will not permit the purchaser to rely on the statute of frauds, but will treat him as a fraudulent trustee and permit the debtor to redeem on equitable terms. Kennedy v. Keating, 34 Mo. 25; Tibbeau v. Tibbeau, 22 Mo. 77; Rose v. Hayden, 35 Kas. 106; Kendall v. Mann, 93 Mass. 15; Sanbross v. Jones, 35 Cal. 481; Connor v. Lewis, 16 Maine, 268; Suggen v. Heard, 31 Miss. 426; Wash. on Real Prop. (4 Ed.) top page 486. (2) Such a purchase by one who has agreed to buy for the debtor and lulls him into security, and he thereby obtains the land at an under price, is a fraud that makes the purchaser a mala-fide trustee and he will not be permitted to hold the land, but the debtor may redeem. O'Neil v. Capelle, 62 Mo. 202; Clarkson v. Greely, 35 Mo. 95; Lewis v. Lewis, 11 Mo. 182; Rose v. Bates, 12 Mo. 30; Griffith v. Judge, 49 Mo. 536; Hunter v. Hunter, 50 Mo. 445; Miller v. Antle, 2 Bush, 407; Crutcher v. Hord, 4 Bush, 360; Wood v. Rabe, 96 N. Y. (3) Parol evidence is admissible to show that a deed absolute on its face is in fact only a mortgage or security for money; and if established the court will so treat it and permit redemption; and it matters not that the debtor, who held the equitable title, procured the holder of the legal title to make an absolute deed to a grantee, with such understanding between the grantee and equitable owner. O'Neil v. Capelle, 62 Mo. 202; Griffith v. Judge, 49 Mo. 536; Workman v. Greening, 115 Ill. 477; Livingston v. Ives, 35 Minn. 55; Miller v....